Case 1:10-cv-00258-SLR-MPT Document 496 Filed 12/02/12 Page 1 of 4 PageID #: 9730
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
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`
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`C.A. No. 10-258 (SLR)(MPT)
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`)))))))))
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`MOBILEMEDIA IDEAS LLC,
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`
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`
`
`Plaintiff,
`
`
`
`v.
`
`
`APPLE INC.,
`
`
`
`
`
`
`
`
`
`
`
`Defendant.
`
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`STIPULATION AND [PROPOSED] ORDER
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`WHEREAS, on November 21, 2011, December 22, 2011, and March 2, 2012, Magistrate
`
`Judge Thynge conducted
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`teleconferences with Plaintiff MobileMedia
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`Ideas LLC
`
`(“MobileMedia”) and Defendant Apple Inc. (“Apple”) (collectively, the “Parties”) regarding the
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`production and use of Apple source code in this case;
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`WHEREAS, on April 11, 2012, Magistrate Judge Thynge issued a Memorandum Order
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`instructing MobileMedia to “provide an Order for review and signature by the Court consistent
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`with the provisions” set forth in the Memorandum Order (D.I. 267);
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`WHEREAS, on April 12, 2012, MobileMedia filed a Proposed Order (D.I. 272);
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`WHEREAS, on April 17, 2012, Magistrate Judge Thynge entered the Proposed Order
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`provided by MobileMedia (D.I. 276);
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`WHEREAS, on April 25, 2012, Apple filed Objections to the Court’s April 11, 2012
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`Memorandum Order and the April 17, 2012 Order (D.I. 288);
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`WHEREAS, on May 14, 2012, MobileMedia filed its Response to Apple’s Objections to
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`the Court’s Orders (D.I. 298);
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`WHEREAS, on July 27, 2012, the Parties appeared before Judge Robinson, and the Court
`
`heard arguments regarding, among other issues, Apple’s Objections;
`
`
`
`
`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`
`
`
`
`C.A. No. 10-258 (SLR)(MPT)
`
`
`
`)))))))))
`
`MOBILEMEDIA IDEAS LLC,
`
`
`
`
`
`Plaintiff,
`
`
`
`v.
`
`
`APPLE INC.,
`
`
`
`
`
`
`
`
`
`
`
`Defendant.
`
`
`STIPULATION AND [PROPOSED] ORDER
`
`WHEREAS, on November 21, 2011, December 22, 2011, and March 2, 2012, Magistrate
`
`Judge Thynge conducted
`
`teleconferences with Plaintiff MobileMedia
`
`Ideas LLC
`
`(“MobileMedia”) and Defendant Apple Inc. (“Apple”) (collectively, the “Parties”) regarding the
`
`production and use of Apple source code in this case;
`
`WHEREAS, on April 11, 2012, Magistrate Judge Thynge issued a Memorandum Order
`
`instructing MobileMedia to “provide an Order for review and signature by the Court consistent
`
`with the provisions” set forth in the Memorandum Order (D.I. 267);
`
`WHEREAS, on April 12, 2012, MobileMedia filed a Proposed Order (D.I. 272);
`
`WHEREAS, on April 17, 2012, Magistrate Judge Thynge entered the Proposed Order
`
`provided by MobileMedia (D.I. 276);
`
`WHEREAS, on April 25, 2012, Apple filed Objections to the Court’s April 11, 2012
`
`Memorandum Order and the April 17, 2012 Order (D.I. 288);
`
`WHEREAS, on May 14, 2012, MobileMedia filed its Response to Apple’s Objections to
`
`the Court’s Orders (D.I. 298);
`
`WHEREAS, on July 27, 2012, the Parties appeared before Judge Robinson, and the Court
`
`heard arguments regarding, among other issues, Apple’s Objections;
`
`
`
`
`
`Case 1:10-cv-00258-SLR-MPT Document 496 Filed 12/02/12 Page 2 of 4 PageID #: 9731
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`WHEREAS, on November 21, 2012, the Parties agreed, and the Court permitted, that the
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`following patents would be tried to a jury beginning on December 3, 2012: U.S. Patent No.
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`6,253,075 (“the ’075 Patent”), U.S. Patent No. 6,427,078 (“the ’078 Patent”), and U.S. Patent
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`No. 6,070,068 (“the ’068 Patent”) (collectively, the “Asserted Patents”);
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`WHEREAS, in the Parties’ Joint Proposed Pretrial Order, filed on November 1, 2012
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`(D.I. 459, ¶ 60(g)), MobileMedia identified the following devices that it accuses of infringing
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`one or more of the asserted claims of the Asserted Patents (these products will be referred to
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`collectively herein as the “Accused Products”): the iPhone 3G, iPhone 3GS, and iPhone 4; and
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`WHEREAS, the Parties have subsequently met and conferred on related issues for
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`purposes of trial;
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`It is hereby STIPULATED AND AGREED, by and between the Parties, subject to the
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`approval of the Court, as follows:
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`1.
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`Only for purposes of this litigation, and for the sole purpose of determining
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`liability with respect to the Asserted Patents, the Parties may rely on the source code produced
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`by Apple for iOS 4.3, iPod 4.3, iTunes 10.4.1 and Wishlist (“Source Code”) as representative of
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`the accused functionality for each of the Accused Products.
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`2.
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`Subject to the provisions of paragraph 1, the Parties agree that the Source Code is
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`applicable for purposes of determining liability of the accused functionality of each of the
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`Accused Products for all time periods since their original release dates, to the extent such
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`functionality exists.
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`3.
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`The Parties agree that either Party’s trial witnesses may testify that the Source
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`Code is representative of the accused functionality for each of the Accused Products.
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`2
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`Case 1:10-cv-00258-SLR-MPT Document 496 Filed 12/02/12 Page 3 of 4 PageID #: 9732
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`4.
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`Only for purposes of the December 3, 2012 trial, and for the sole purpose of
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`determining liability with respect to the Asserted Patents, the Parties agree that the Parties may
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`refer to the Accused Products collectively during trial as the “Accused iPhones.” Subject to the
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`provisions of paragraph 5, the Parties further agree that evidence relating to the iPhone 3G,
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`iPhone 3GS and/or iPhone 4 may be treated and used interchangeably for purposes of
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`determining infringement, MobileMedia need not offer separate evidence or individually prove
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`infringement for any particular version of the Accused iPhones, and any verdict of infringement
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`would apply to all versions of the Accused Products.
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`5.
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`MobileMedia agrees that, notwithstanding the provisions of paragraph 4, it does
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`not accuse the iPhone 4 (CDMA model) of infringing any asserted claim of the ’075 Patent and,
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`thus, any verdict of infringement of the ’075 Patent does not apply to the iPhone 4 (CDMA
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`model).
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`6.
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`The Parties further agree that at trial, this Stipulation and Proposed Order and any
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`final Order entered by the Court in response to this Stipulation and Proposed Order may not be
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`referenced, used as an exhibit, or otherwise presented to the jury other than for impeachment
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`purposes.
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`3
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`Case 1:10-cv-00258-SLR-MPT Document 496 Filed 12/02/12 Page 4 of 4 PageID #: 9733
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`MORRIS, NICHOLS, ARSHT & TUNNELL LLP
`
`/s/ Jeremy A. Tigan
`
`
`
`
`Jack B. Blumenfeld (#1014)
`Rodger D. Smith II (#3778)
`Jeremy A. Tigan (#5239)
`1201 N. Market Street
`P.O. Box 1347
`Wilmington, DE 19899-1347
`(302) 658-9200
`jblumenfeld@mnat.com
`rsmith@mnat.com
`jtigan@mnat.com
`
`PROSKAUER ROSE LLP
`Steven M. Bauer
`Justin T. Daniels
`Safraz W. Ishmael
`One International Place
`Boston, MA 02110-2600
`(617) 526-9600
`
`Kenneth Rubenstein
`Anthony C. Coles
`Alan Federbush
`Eleven Times Square
`New York, NY 10036
`
`Attorneys for Plaintiff MobileMedia Ideas LLC
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`MORRIS JAMES LLP
`
` /s/ Mary B. Matterer
`
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`
`
`Richard K. Herrmann (#405)
`Mary B. Matterer (#2696)
`500 Delaware Avenue, Suite 1500
`Wilmington, Delaware 19801-1494
`(302) 888-6800
`rherrmann@morrisjames.com
`mmatterer@morrisjames.com
`
`FISH & RICHARDSON P.C.
`Ruffin B. Cordell
`1425 K Street, NW, 11th Floor
`Washington, DC 20005
`
`Frank E. Scherkenbach
`One Marina Park Drive
`Boston, MA 02210
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`O’MELVENY & MYERS LLP
`George A. Riley
`Luann L. Simmons
`Two Embarcadero Center, 28th Floor
`San Francisco, CA 94111-3823
`(415) 984-8700
`griley@omm.com
`lsimmons@omm.com
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`Attorneys for Defendant Apple Inc.
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`4
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`December 2, 2012
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